What question has the Scottish Court of Session has been asked to resolve?

In December 2022, the Scottish parliament passed the Gender Recognition Reform (Scotland) Bill. This bill, if enacted, would reform the process by which people in Scotland can legally change their gender, including by removing the requirement for a medical diagnosis of gender dysphoria.

Gender recognition in Scotland is a devolved matter, but the legislation has been blocked by the UK government after the secretary of state for Scotland issued a ‘section 35 order’, preventing the bill from proceeding to royal assent. The court must determine what the proper interpretation and application of section 35 of the Scotland Act 1998 is, and whether it was lawful to use this power to veto the legislation.

What is section 35 of the Scotland Act?

The Scotland Act 1998 sets out the legislative powers of the Scottish parliament. While the act contains several provisions that allow the UK government to challenge Scottish legislation, this is the first time that section 35 has been used.

Section 35 allows the UK government to challenge Scottish legislation made within devolved competence under two circumstances: where the legislation is incompatible with international obligations, national security or defence interests; or where the legislation would have “an adverse effect” on reserved (not-devolved) matters. ¹ Scotland Act 1998, c.46, s35(1)(a)-(b)

An order to prevent the bill being submitted for royal assent must be made by the secretary of state within four weeks of a bill being passed. ² ibid (3)(a) The order must set out the provisions of the bill and provide reasons that the legislation has been blocked. ³ ibid (2)

How was section 35 triggered to block the Scottish Gender Reform Recognition Act?

The Scottish government passed the Gender Recognition Reform Bill by a majority of 86 to 39. The legislation was sponsored by the Scottish government, although nine SNP members opposed the legislation.

Scotland secretary Alister Jack announced on 16 January 2023 that he planned to make a section 35 order. A day later, Jack made the order and gave a statement explaining his decision to the House of Commons. In addition, the UK government published a statement of reasons, which remains the basis of the UK government’s argument. ⁴ Office of the Secretary of State for Scotland and the Rt Hon Alister Jack MP, ‘Gender Recognition Reform (Scotland) Bill: statement from Alister Jack’ GOV.UK, (17th January 2023) retrieved 13th September 2023, https://www.gov.uk/government/news/gender-recognition-reform-scotland-bill-statement-from-alister-jack

As there is no automatic referral to the courts, a judicial review has to be requested. The Scottish government did so in April by challenging the validity of the order. ⁵ Scottish government, ‘Gender recognition reform: Section 35 Order challenge – petition’ Scottish government,  (19th of April 2023) retrieved 14th of September 2023, https://www.gov.scot/publications/gender-recognition-reform-section-35-order-challenge-petition/

What is the UK government’s argument?

The UK government argues that the Gender Recognition Reform Bill would have an adverse effect on reserved matters. In particular, that the bill would affect the matter of ‘equal opportunities’ – specifically the Equality Act 2010, which makes ‘sex’ a protected characteristic. ⁶ Equality Hub, Office of the Secretary of State for Scotland, and Government Equalities Office, ‘Statement of reasons related to the use of section 35 of the Scotland Act 1998’ GOV.UK, (17th January 2023) retrieved 13th September 2023, https://www.gov.uk/government/publications/statement-of-reasons-related-to-the-use-of-section-35-of-the-scotland-act-1998 Additionally, it claims that the bill would have practical consequences on the reserved matters of ‘fiscal policy’ and ‘social security’.

The government groups the adverse effects into three overall areas of concern:

1. First, the government highlights the impact of creating two parallel regimes for Gender Recognition Certificates (GRCs). Any Scottish GRC issued under the bill’s terms would not automatically have legal effect outside of Scots law. This could have an impact on matters such as equal pay (as it affects who can be used as a comparator) and the administration of tax, which only allows for one legal sex on records.
2. Second, the government argues that the bill would create increased potential for fraudulent applications for GRCs, for instance due to the removal of the requirement for a medical diagnosis of gender dysphoria, which could undermine the safety of women and girls in single-sex spaces.
3. Third, the government claims that an increased number of people holding GRCs will exacerbate existing issues with sex-segregated services. GRCs alter one’s sex for Equality Act 2010 purposes, ⁷ For Women Scotland Ltd v Scottish Ministers [2022] CSOH 90 but there are exceptions such as refuges where those with the protected characteristic of gender reassignment can be excluded. The Scottish bill would also lower the age limit for GRCs to 16, which the UK government argues would also risk affecting single-sex schools.

In court, David Johnston KC, the UK government’s lawyer, opposed the Scottish government’s claim that section 35 had been used due to policy rather than any adverse effects as a ‘red herring’.

What is the Scottish government’s argument?

The Scottish government’s case is based on two main claims: that the Gender Recognition Reform Bill does not modify the law as it applies to reserved matters, and that the reasons given by the UK government neither prove that there would be adverse consequences nor are sufficient to meet their duty to provide reasons when making a section 35 order.

Lord Advocate Dorothy Bain KC, the Scottish government’s senior law officer, argued in court that the bill would not modify the law as it applies to reserved matters. The Scottish government has previously amended the 2004 Act by removing the spousal veto on gender recognition. ⁸ Marriage and Civil Partnership (Scotland) Act 2014, asp 5, schedule 2 While the Scottish government agrees that section 9 of the Gender Recognition Act 2004 (passed by the UK parliament) applies to the reserved matter of equal opportunities, the provisions setting out who can obtain a GRC do not. UK government lawyer David Johnston KC argued that the Scottish government had taken an overly ‘narrow’ view of what counts as impacting a reserved matter.

The Scottish government also claims that the reasons given show that the section 35 order were irrational, based on irrelevant considerations, and inadequate, due to the lack of sufficient supporting evidence. The secretary of state’s focus on safeguards is argued to speak more to a policy disagreement rather than adverse consequences on reserved matters, and as such should be irrelevant to making a section 35 order.

The Scottish government further argues that the UK government was not acting in accordance with agreed processes for intergovernmental consultation. Although these processes have no legal effect, the Scottish government contends that a section 35 order was intended to be a matter of last resort, and that these other channels should have been pursued first.

Outside of the petition, the Scottish government has made clear that it sees the section 35 order as an attack on devolution. At the time of the order, Nicola Sturgeon branded it “a full-frontal attack on our democratically elected Scottish parliament and its ability to make its own decisions on devolved matters”. ⁹ Nicola Sturgeon, Tweet, 16th January 2023, www.x.com/NicolaSturgeon/status/1615047894402273283?s=20  

What is the likely timeline for this legal case?

The case was initially heard by the Outer House of the Court of Session. The procedural hearing took place on 16 August, followed by the substantive hearing on 19 and 20 September where both sides, beginning with the petitioner (the Scottish government), presented their arguments. Lady Haldane will consider the case in private before publishing her opinion, and warned that due to the case’s ‘unique, interesting and challenging’ nature it may take some time.

It is probable that any decision will be appealed, first to the Inner House of the Court of Session in front of three judges, and ultimately to the Supreme Court of the United Kingdom. If so, it is unlikely that the case will be resolved this year.

Additionally, a separate 2022 ruling by the Outer House that GRCs alter sex for Equality Act purposes has been appealed, and is set to be heard in the Inner House in October 2023. The outcome of this hearing is likely to be of interest to both sides, as it speaks to the pivotal question of whether GRCs have the potential to impact on the reserved matter of equal opportunities and to what extent.